CIVIL AND EARTHMOVING CONTRACTORS OF KWINANA PTY LTD (ACN 009 328 376)

Contempt of Court - Sentencing - Failure to allow opportunity to make submissions in mitigation of sentence - Considerations relevant to determination of appropriate sentence - Turns on own facts

Sentence of 1 month imprisonment set aside and fine of $10,000 substituted

Second Appellant : Mt T F Percy QC & Mr N J Mullany

AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98

Director of Public Prosecutions (Cth) v United Telecasters Syd Ltd (in liq) (1992) 7 BR 364

Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530

Harris v Muirhead [1993] 2 Qd R 527

Hill v Katich [1973] WAR 11

Jarvis v R (1993) 20 WAR 201

Kennedy v Lovell [2002] WASCA 217; [2002] WASCA 226

Lewis v Ogden [1984] HCA 28; (1984) 153 CLR 682

Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466

R v Draper [1970] QWN 20

R v GP (1997) 18 WAR 196

R v Pearce (1992) 7 WAR 395

R v West Australian Newspapers Ltd; Ex parte Director of Public Prosecutions (WA) (1996) 16 WAR 518

Re Clements; Costa Rica Republic v Erlanger (1877) 46 LJ Ch 375

Resolute Ltd v Warnes [2001] WASCA 4

The Swan Brewery Co Pty Ltd v Newman & Anor, unreported; SCt of WA (Templeman J); Library No 980593; 9 October 1998

Wood v Staunton (No 5) (1996) 86 A Crim R 183

1 JUDGMENT OF THE COURT: This is an appeal against the decision of a Judge of this Court imposing a sentence of 1 month's imprisonment on the second appellant, Mr Joseph Tilli, after Mr Tilli was found to have been guilty of contempt of Court. At the conclusion of argument on the hearing of the appeal we unanimously allowed the appeal, set aside the judgment of the Court below and substituted, for the period of 1 month's imprisonment imposed upon Mr Tilli, a fine of $10,000. We allowed Mr Tilli a period of 14 days within which to pay that sum and ordered that, in default of payment by the due date, he should be sentenced to imprisonment in respect of any amount outstanding at the rate of one day for each $150 or part thereof unpaid. These are our reasons for arriving at those conclusions.

2 The first appellant, Castlecity Pty Ltd (which is, in truth, not an appellant at all, but only named as such for the sake of convenience), became a party to litigation against the respondents. The litigation arose out of the purchase, by Castlecity, of land from the respondents upon the condition that settlement was not to occur until such time as the land had been rezoned. The respondents took up the position that Castlecity was in breach of its obligations promptly to pursue the issue of rezoning and issued a notice of default. Castlecity thereupon commenced proceedings, claiming specific performance of the contract for the sale of the land.

3 On 6 August 1999, Mr Tilli, in his capacity as a director of Castlecity, lodged a caveat over the land. The respondents applied to the Court to have it removed and, on 30 January 2001, Miller J ordered that it be removed. Undeterred, on the following day Mr Tilli lodged a second caveat over the land on behalf of Castlecity. The respondents applied for the removal of that caveat, also. On 12 February 2001, Miller J ordered that the caveat be removed. He also ordered that Castlecity "be permanently restrained from lodging any caveat or any other instrument dealing with the title in respect of [the] land".

4 On the day upon which this order was made, Mr Tilli had been given leave to appear on behalf of Castlecity before Miller J. Mr Tilli explained to Miller J why it was that he had believed that Castlecity had been entitled to lodge the second caveat. He sought leave to obtain legal representation. Miller J, after telling Mr Tilli that he could take such legal advice as he wished, said:

"I'm giving you the opportunity to speak this morning just because it needs to be brought home to you, I think, that the orders are already made and you can't circumvent the orders by lodging a different caveat the following day."

5 After some further discussion with Mr Tilli, Miller J reiterated that he would order that no further caveats could be lodged in order to protect the alleged interest in the land. He then made the order to which we have referred. The order was extracted and served on Mr Tilli on 20 February 2001.

6 Notwithstanding this, on 26 March 2001, Mr Tilli, on behalf of Castlecity, lodged a third caveat over the land, claiming an estate or interest "in fee simple as purchaser", being the same estate or interest as had been claimed in the second caveat, although he added the words "and as equitable mortgagee". The same grounds were recited in support of this caveat as had been recited in support of the second caveat.

7 On 6 June 2001 the second, third and fourth respondents commenced proceedings for an order removing the third caveat and for orders fining Castlecity and committing Mr Tilli to prison for contempt of Court.

8 The matter came on for hearing by another Judge, after various programming directions had been made. On 14 January 2002 that Judge found Castlecity and Mr Tilli to be guilty of contempt. He fined Castlecity the sum of $3000 and ordered that Mr Tilli be committed to prison for a period of 1 month.

9 Castlecity has not appealed against the sentence imposed upon it, but Mr Tilli, who was granted bail some three days after being imprisoned, has appealed against the sentence of imprisonment imposed upon him.

10 There are two grounds of appeal. The first is that the sentencing Judge erred in imposing a sentence of imprisonment rather than a fine or a suspended sentence. The second is that the sentencing Judge erred in not inviting submissions in mitigation of sentence following upon his decision to convict Mr Tilli of contempt of Court.

11 It is necessary only to consider the second of those grounds. That is because it is common ground between the parties that the sentencing Judge overlooked the need to afford counsel for Mr Tilli an opportunity to make submissions in respect of the sentence to be imposed. Counsel for Mr Tilli submitted to us that the only matters which were ventilated before his Honour were matters going to the question whether or not Mr Tilli should be convicted of contempt. Counsel for the second, third and fourth respondents, on the other hand, said that this submission was not entirely accurate and that what had been ventilated before his Honour had been the question whether or not the contempt had been contumacious, in the sense that, knowing that he would be in breach of an order of the Court if he lodged the third caveat, Mr Tilli nevertheless deliberately did so. Whoever may be right, the undisputed fact is that the Judge found that there had been a contumacious contempt and then proceeded immediately to sentence Mr Tilli to a period of 1 month's imprisonment without affording to him, or to his legal representatives, an opportunity to make any submissions in that respect. There was consequently a failure of procedural fairness sufficient, of itself, to require that the sentence imposed by the sentencing Judge be set aside: (cf Allen v Gittos (1995) 13 WAR 560).

12 There remained the question what sentence should be imposed.

13 It seemed to us (as it did to the sentencing Judge) that the contempt was serious. This was, as we have said, the third time that the caveat was lodged over the land and the lodgment was effected in defiance of Miller J's order, made in the clearest possible terms on 12 February 2001. Whilst Mr Tilli had sought to persuade the sentencing Judge that the third caveat was lodged after he had obtained legal advice to the effect that he was able to do so, his Honour was satisfied that Mr Tilli did not have an honest belief that the order of 12 February 2001 did not prevent the lodgment of the third caveat. He found that Mr Tilli considered that, if any action was to be taken against him for acting in defiance of the order, he would be able to say that he did so on the advice of his lawyer, even though he knew that he was not permitted to lodge another caveat (par 82 of the sentencing Judge's reasons for judgment).

14 While recognising the serious nature of the contempt, counsel for Mr Tilli urged upon us the proposition that Mr Tilli had apologised to the Court and had seen the error of his ways. It is true that Mr Tilli has apologised. He did so in an affidavit sworn by him on 30 August 2001, in which he apologised to the Court for his "incorrect actions" in causing the third caveat to be lodged. However, he went on to say that, when he lodged the third caveat, he was not aware that he was disobeying, in any way, the order made by Miller J. He said that he now fully appreciated the true position and understood the limits on future actions on his part and apologised to the Court and to all parties concerned for the difficulties which had been caused by his actions in lodging the third caveat. We have already remarked that the sentencing Judge did not believe the assertion, by Mr Tilli, that he was unaware of his disobedience of the order of Miller J. That misstatement consequently detracts, to a considerable extent, from the genuineness of the expression of remorse. However, we accept that there is now at least some recognition by Mr Tilli of the fact that court orders cannot be disobeyed.

15 Next, counsel for Mr Tilli referred us to a number of matters touching upon Mr Tilli's personal antecedents. It is enough, for present purposes, to say that Mr Tilli has no prior criminal convictions, that he is married with a seven-year-old child and that we were told that his financial circumstances are adequate to enable him to pay a relatively substantial fine, even allowing for the fact that he is liable to pay the respondents' costs of the contempt proceedings which, we were told, are likely to amount to in excess of $25,000. A submission was made, in this last respect, that this, of itself, would be a substantial punishment (as to which cf Pico Holdings Inc v Voss [2002] VSC 319, at [78]). With due respect, we do not regard Mr Tilli's liability to pay those costs as a "punishment", but rather a consequence of his own decision to resist the making of an order for contempt or, if counsel for the respondents is right, to resist the finding that the contempt was contumacious. We accept, of course, that the existence of a liability of that kind is a factor to be taken into account in considering a contemnor's ability to pay a fine, although, as we have said, it presents no particular difficulty for the appellant in this case.

16 Taking into account all of these matters, it seemed to us that the imposition of a fine would be an appropriate disposition. Whilst contempts of the kind committed by Mr Tilli undermine the very administration of justice and consequently call for a punishment which reflects the need for both personal and general deterrence, not every such case attracts a custodial sentence (cf Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 315). This was the first occasion upon which Mr Tilli has been convicted of a contempt, or, indeed, any offence. Also, while we are, as we have said, somewhat sceptical about the degree of his remorse, he does, at least, recognise that he will, henceforth, have to obey orders made by the Court. In all of these circumstances a fine of $10,000 was, in our opinion, a sufficient punishment. We consequently allowed the appeal, set aside the sentence of imprisonment imposed by the sentencing Judge and made the orders to which we have earlier referred.